Recently, Chief Executive Carrie Lam has stressed in an interview given to Phoenix Satellite Television that under “one country, two systems”, “one country is the root and the essence that we don’t allow the “two systems” to crush, and if political issues are not well managed, policy implementation will be difficult”. On the one hand, Lam said to a reporter she did not anticipate Hong Kong politics is so complicated; on the other hand, she gave a harangue about “one country is the root”. Was she being humble, self-blaming or self-deceiving when she said “I don’t understand politics” ? If the current tumultuous situation of Hong Kong is the result of deviating from the “the root of one country”, where did the prosperity and stability of Hong Kong, a place with “no root”, come from after the transfer of sovereignty? Now that Hong Kong has been deemed by the world one of the nondescript cities on the mainland, is it a blessing upon one country?

A state comprises its dominions, people, culture and government. A government is the essential condition that constitutes a polity. In premodern societies, divine right of kings prevailed. Kings derived their authorities from God, which was the legitimacy of a polity and also the foundation of one country on which the people submit themselves to the rule of a dynasty. Since the Enlightenment in the 18th century, religious dogmatism has been replaced by secular humanism, hence the heritage of “the emperor following God’s willingness to command” has been ditched. God’s position has since been filled in with the social contract theory and the conception of democratic constitutionalism. The constitution, which reins in government’s powers and protects human rights, has become the foundation of one country.

China has its constitution, the idea of which is yet a far cry from that of a modern constitutional government. Since General Secretary Xi Jinping took the helm, he has repeatedly accentuated the importance of “ruling according to the law and most essentially ruling according to the Constitution”, which is however different from how the West understand it. Act 1 of the Constitution of the PRC stipulates that “the socialist system is the basic system of the People’s Republic of China” and “disruption of the socialist system by any organization or individual is prohibited”. Act 5 also sets out that “no organization or individual is privileged to be beyond the Constitution or the law”. Nonetheless, it is still perplexing whether the communist party or the law is overriding.

Former official of the Liaison Office of the Central People’s Government(LOCPG) and Professor of Law at Peking University Qiang Shigong said: “Our written Constitution does not enjoy the supreme legal authority”. In his article “The Party Constitution and the Constitution – the Composition of the Rule of Law of a Diversified and Unified Republic, he pointed out that the course, guiding principle and policy put forward in the Party Constitution are the “supreme laws” of China, and the legitimacy of the Party Constitution comes from the fact that the proletariat shoulders the new “natural law” of materializing communism”. Professor Qiang adopted an original approach to bring about the dual identity of the Chinese Communist Party(CCP): In the process of legislation and constitution amendment, the Party can serve as the “incarnation of the people”, guiding the legislation and law amendment through policies; once the law is enacted, the Party, as the representative of the people, shall comply with the Constitution and laws laid down by the people in enforcing and abiding by the laws.”

CCP’s elaboration of its own legitimacy is just a laughingstock. Since the disintegration of the Soviet Union and the radical change in the former communist countries in the Eastern Europe, how many Chinese people have taken the materialization of communism as the “natural law”? The CCP dubs itself the “incarnation of the people” . Where does this transformation, which is founded on no constitutional norms, stem from? The Constitution is the Social Contract between the People and the Government, an article published ten years ago by a publication called Study Times of the Party School of the CCP Central Committee, asked: Since the Party Constitution stipulates that CCP members have to “keep the secrets of the CCP and the country when the CCP and the people sign and put into practice the Constitution(social contract), can the members keep a lot of ulterior secrets in support of the black-box operation?

While whether the Constitution or the Party committee has the final say has been a question mark, the Constitution has been absent from judicial practice in China for decades and lawsuits against the Constitution have never been seen. Wang Zhenmin, the former LOCPG legal chief and Professor of Law at the Tsinghua University, said that no lawsuits supposed to be filed against the Constitution is “one of the voids and shortcomings of the Constitution of our country”. Zhang Qianfan, Professor of Law at Peking University, also indicated that “if a constitution is not applicable to the judiciary, it is just a constitution on paper, an empty one”.

There is a country without constitution on the mainland while there is a constitution in Hong Kong, which is not a country. Carrie Lam has recently proclaimed that there is no separation of powers in Hong Kong’s political system, the vulnerable part of which is the stress on the executive-led system authorized by the central government that weakens the power of the Basic Law to rein in the government and protect the rights of the citizens. If the root of constitution in Hong Kong is weeded out, how can the city subsist on? The only way is to go back to the premodern society to worship the CCP, God of politics that is omniscient, omnipotent and omnibenevolent.

(Shum Chau, current affairs commentator)

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